Fossella v. Dinkins

• Decision Date: 30 October 1985
• Citation: 66 N.Y.2d 162,485 N.E.2d 1017,495 N.Y.S.2d 352
• Parties: , 485 N.E.2d 1017 In the Matter of Frank V. FOSSELLA et al., Respondents-Appellants, v. David DINKINS et al., Respondents. Campaign for a Nuclear Navyport Referendum et al., Intervenors-Appellants-Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 352

495 N.Y.S.2d 352

66 N.Y.2d 162, 485 N.E.2d 1017

In the Matter of Frank V. FOSSELLA et al., Respondents-Appellants, v. David DINKINS et al., Respondents Campaign for a Nuclear Navyport Referendum et al Intervenors-Appellants-Respondents.

Court of Appeals of New York.

Oct. 30, 1985.

Anne E. Simon, Franklin Siegel and Jerry H. Goldfeder, New York City, for intervenors-appellants-respondents

Robert Allan Muir, Jr., Staten Island, for Frank V. Fossella, respondent-appellant.

Frederick A.O. Schwarz, Jr., Corp. Counsel (Leonard Koerner, Thomas C. Crane and Steven H. Mosenson, New York City, of counsel), for respondents.

John J. Marchi, pro se, David Jaffe and Kathryn K. Rooney, New York City, for Senator John J. Marchi, amicus curiae.

Arthur Eisenberg and Steven R. Shapiro, New York City, for New York Civil Liberties Union, amicus curiae.

OPINION OF THE COURT

PER CURIAM.

This is a proceeding to have the Board of Elections remove from the ballot a proposed referendum which would amend New York City Charter § 67. Basically the amendment relates to the use of city property and funds in connection with a military installation by the Federal Government any component of which is designed to carry or store nuclear weapons.

The amendment would prohibit the Board of Estimate from approving the sale, lease, exchange, or other disposition of city property for the development of such a facility, and would further prohibit the Board from granting any franchise, permit, license, use, or consent to use city property or streets for such a purpose. The proposed amendment would also prohibit the Board from approving an appropriation of funds which would facilitate the development of this type of military installation.

Special Term found that the proposed amendment would interfere with the Federal Government's power to provide for the defense of the Nation and thus would be unconstitutional under U.S. Constitution, article I, § 8. The court also found that the amendment called for a citywide opinion poll for which no express authority had been granted by the Legislature.

The Appellate Division, 110 A.D.2d 227, 494 N.Y.S.2d 878, unanimously affirmed agreeing with Special Term that the amendment would violate the Federal Constitution. The court also held that the proposed amendment was invalid under State Law § 50(2).

At the outset we note that this controversy is justiciable. Although it is generally inappropriate for the courts to consider the validity of a proposed legislation, they may do so in a case such as this where a proposed referendum sought to be removed from the ballot is in direct conflict with a State statute. Our holding in New York Public Interest Research Group v. Carey, 42 N.Y.2d 527, 531, 399 N.Y.S.2d 621, 369 N.E.2d 1155, was not to the contrary. There we noted (at p. 532, 399 N.Y.S.2d 621, 369 N.E.2d 1155) that a decision on such a question is not an advisory opinion when "all the expense and human effort involved in the election process would be wasted because of fatal defects in the law". Here, unlike in the New York Public Interest case the proceedings seek to remove the referendum from the ballot. In such an instance the court may grant the relief sought, the rule being "one of prudence rather than one of power" (Matter of McCabe v. Voorhis, 243 N.Y. 401, 412, 153 N.E. 849).

On the merits, although we agree with ...